Andrew J. Jones v Myer Stores Limited

Andrew J. Jones applied to the delegate of the Registrar of Trade Marks to remove Trade Mark Registration number A401186, the mark MOMENTO, from the Register. The mark was registered in the name of Myer Stores Limited for goods in class 25, specifically clothing and shoes. The application for removal was based on the ground that no evidence of usage of the trademark could be found on goods in class 25.

The delegate was required to determine whether the applicant had satisfied the procedural requirements for bringing an application under section 23 of the Act. Specifically, the delegate needed to consider whether the applicant had provided sufficient proof of service of the application on the registered proprietor, as mandated by sub-regulation 22(2) and regulation 75. The delegate also had to consider the applicant's failure to respond to official correspondence regarding these requirements and the subsequent intention to refuse the application.

The delegate reasoned that the applicant had failed to set the removal proceedings in motion by neglecting to provide proof of service of the application on the registered proprietor. Despite being advised of the requirements and given opportunities to comply or provide reasons for delay, the applicant took no action. Consequently, the delegate found no reason to depart from the intention to refuse the application. The legal principle applied was that failure to comply with essential procedural requirements, such as proof of service, prevents an application from proceeding.

Accordingly, the delegate refused the application to remove trade mark registration number A401186 from the Register.